Opinion
03 Civ. 9249 (RWS).
October 26, 2004
SIDLEY AUSTIN BROWN WOOD, New York, NY, ROBIN B. SKARSTAD, ESQ., NICHOLAS K. LAGEMANN, ESQ., Of Counsel, Attorneys for Plaintiff.
HONORABLE ELIOT SPITZER, Mineola, NY, VALERIE SINGLETON, ESQ., Assistant Attorney General, Of Counsel, Attorney General of the State of New York Attorneys for Defendants.
OPINION
Plaintiff Anthony Medina ("Medina") has noticed the voluntary dismissal of this proceeding pursuant to Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure and defendants New York State Department of Correctional Services, Donna Masterson, Glenn Goord, James Walsh, Daniel Senkowski, Dale Arus, R.W. Santor, John Mitchell, R. Ano, Michael McGinnis, Bernard Obremski, George B. Duncan, Gary Greene, Paul Bundrick, and John Serhan (collectively, "Defendants") have opposed such dismissal. For the reasons set forth below, voluntary dismissal is proper and this case is closed.
Prior Proceedings
On March 15, 1991, a class action was brought on behalf of all present and future deaf and hard-of-hearing inmates in the New York State correctional system. The class alleged that the New York State Department of Correctional Services ("DOCS") violated their rights under the Rehabilitation Act, 29 U.S.C. § 794, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., the Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution, and 42 U.S.C. § 1983. On February 3, 1992, theClarkson defendants' motion to dismiss was denied, see Clarkson v. Coughlin, 783 F. Supp. 789 (S.D.N.Y. 1992), and on January 25, 1993, two plaintiff sub-classes were certified, sub-classes comprised of all present and future deaf and hearing-impaired male and female inmates of the New York State Department of Correctional Services "who have been, are, or will be discriminated against, solely on the basis of their disability, in receiving the rights and privileges accorded to all other inmates." Clarkson v. Coughlin, 145 F.R.D. 339, 348 (S.D.N.Y. 1993).
On August 3, 1994, the class moved for a declaratory judgment, permanent injunctive relief and summary judgment. On June 16, 1995, this Court issued an opinion and order granting in part and denying in part the plaintiffs' motion, and concluding that theClarkson defendants had violated the plaintiffs' statutory and constitutional rights when they failed, inter alia, to provide deaf and hearing-impaired inmates with sign language interpreter services and other assistive communication devices during reception, classification, educational, vocational, counseling, medical and mental health encounters and during disciplinary, grievance and parole proceedings. See Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995).
On June 6, 1996, the parties in Clarkson v. Coughlin entered into a consent order and judgment that was ordered by the Court (the "Consent Decree"). The Consent Decree outlines, in considerable detail, the relief to which the class is entitled and provides a mechanism for compliance with the judgment.
On or before October 21, 2003, Medina moved by order to show cause in Clarkson v. Coughlin to hold Defendants in contempt of the Consent Decree and for a temporary restraining and preliminary injunctive relief.
By order dated October 23, 2003 and filed October 28, 2003 (the "October 2003 Order") entered in Clarkson v. Coughlin and certain related actions, this Court set forth the procedures to be followed by inmates filing motions and other papers seeking monetary relief to enforce the Consent Decree in Clarkson v. Coughlin. Pursuant to the October 2003 Order, "[e]ach prisoner will file a complaint with the Clerk's Office, which will be assigned a separate docket number, and will be designated as a related case to Clarkson v. Goord." (October 2003 Order, at 2.) The October 2003 Order specifies that all prisoners filing a complaint after the date of the October 2003 Order will be required "to first submit their complaints for resolution to an ombudsperson appointed by the State. This ombudsperson will determine whether the prisoner is a member of the class covered by the decree and whether a violation occurred." (Id.)
Pursuant to an order dated November 14, 2003 and filed November 17, 2003 (the "November 2003 Order"), and "[n]otwithstanding" the October 2003 Order, Medina's motion was assigned its own docket number and designated as related to Clarkson v. Coughlin. (November 2003 Order, at 1.)
Discovery proceeded, a hearing on Medina's motion for contempt and a preliminary injunction was scheduled and repeatedly adjourned, and on March 29, 2004, Medina noticed the voluntary dismissal of this proceeding pursuant to Rule 41(a)(1)(i), Fed.R.Civ.P. Defendants have opposed voluntary dismissal, and following the submission of various materials on and before April 27, 2004, the matter was deemed fully submitted.
Discussion
Medina argues that Rule 41(a)(1)(i), Fed.R.Civ.P., explicitly provides that a plaintiff may notice voluntary dismissal without leave of court "at any time before service by the adverse party of an answer or of a motion for summary judgment." Fed.R.Civ.P. 41(a)(1)(i). As Defendants have neither filed an answer nor a motion for summary judgment, Medina asserts that dismissal of this matter under Rule 41(a)(1)(i) is proper and that, while Medina "has no intention to bring another action based on the facts involved in this matter," the Federal Rules of Civil Procedure make clear that a voluntary dismissal is without prejudice. (Letter of Nicholas K. Lagemann to the Court, dated March 30, 2004, at 2.)
Defendants argue that any dismissal of the instant proceeding should be with prejudice, in light of the substantial resources invested by Defendants in litigating this matter to the eve of a hearing. Defendants further contend that this matter was treated as a separate contempt proceeding under the Clarkson Consent Decree and only assigned a separate docket number for housekeeping purposes. Accordingly, Defendants argue, any dismissal should be effected by the filing of a stipulation of dismissal signed by all parties who have appeared, pursuant to Rule 41(a)(1)(ii), Fed.R.Civ.P., or by order of the court "and upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2). If Medina's proceeding is dismissed without prejudice, Defendants argue that Medina should reimburse Defendants for their costs incurred in preparing for the contempt hearing and that he should be precluded from bringing a subsequent action based on the underlying facts at issue here.
Dismissal Without Prejudice Is Appropriate
Rule 41(a)(1), Fed.R.Civ.P., provides, in pertinent part, that:
[A]n action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs. . . . Unless otherwise stated in the notice of dismissal . . ., the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any action of the United States or of any state an action based on or including the same claim.
Fed.R.Civ.P. 41(a)(1). Rule 41(a)(1) thus provides for "automatic dismissal" without court order, subject to the provisions of Rules 23(e) and 66, Fed.R.Civ.P., if a plaintiff files a notice of voluntary dismissal before the defendant has either answered or moved for summary judgment. Valley Disposal, Inc. v. Cent. Vermont Solid Waste Mgmt. Dist., 71 F.3d 1053, 1055 n. 2 (2d Cir. 1995).
"Within the limitations set forth by the rule itself, the right to dismiss pursuant to Rule 41(a)(1) is `absolute.'" In re WorldCom, Inc. Sec. Litig., Nos. 03 Civ. 4496 et al., 2003 WL 23095478, at *2 (S.D.N.Y. Dec. 30, 2003) (quoting Bressler v. Liebman, No. 96 Civ. 9310 (LAP), 1998 WL 167334, at *2 (S.D.N.Y. Apr. 8, 1998)). Thus, where the conditions set forth in the Rule have been met, "neither the Court nor a defendant may prevent Rule 41(a)(1)(i) dismissal." Bressler, 1998 WL 167334, at *8;see also Barr Bros. Co. v. Senft, No. 82 Civ. 5007, 1982 WL 1342, at *3 (S.D.N.Y. Oct. 27, 1982) ("The consensus of opinion is that Rule 41(a)(1) means just what it says — if no answer or motion for summary judgment has been served, the plaintiff has the unilateral right to discontinue his action. There is no discretion of the court involved."). The "[m]ere expenditure of time and money by a defendant . . . does not bar a plaintiff from timely dismissing an action under Rule 41(a)(1)(i)." Johnson Chem. Co. v. Home Care Prods., Inc., 823 F.2d 28, 31 (2d Cir. 1987), abrogated on other grounds by Cooter Gell v. Hartmarx Corp., 496 U.S. 384 (1990).
Although a plaintiff may enjoy the unfettered ability to dismiss an action under Rule 41(a)(1)(i),
"Once the defendant has filed a summary judgment motion or answer," however, "the plaintiff may dismiss the action only by stipulation, or by order of the court, upon such terms and conditions as the court deems proper." Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 394, 110 S. Ct. 2447, 110 L.Ed. 2d 359 (1990) (citations omitted). The Supreme Court has noted that Rule 41(a)(1) "allow[s] a plaintiff to dismiss an action without the permission of the adverse party or the court only during the brief period before the defendant ha[s] made a significant commitment of time and money." Id. at 397.In re WorldCom, 2003 WL 23095478, at *2 (alterations in original).
Courts have construed Rule 41(a)(1) strictly in determining whether voluntary dismissal has been foreclosed by the interposing of an answer or summary judgment motion. See, e.g., Santiago v. Victim Servs. Agency, 753 F.2d 219, 222 (2d Cir. 1985) (noting that the wording of Rule 41 is "unambiguous" and emphasizing that "[o]nly the occurrence of one of the two events specified in the rule can cut off the plaintiff's right unilaterally to dismiss the action"), abrogated on other grounds by Cooter Gell v. Hartmarx Corp., 496 U.S. 384 (1990).
In this vein, courts have repeatedly rejected arguments that events or filings other than answers or motions for summary judgment may be deemed the "equivalent" of those items for purposes of Rule 41(a)(1). See, e.g., Santiago, 753 F.2d at 221-22 (declining to treat the defendants' opposition to a motion for a preliminary injunction or their involvement in a multi-day hearing on the motion "as the equivalent of an answer or a motion for summary judgment under Rule 41"); Thorp v. Scarne, 599 F.2d 1169, 1173 (2d Cir. 1979) (rejecting the argument that a brief accompanied by supporting affidavits and submitted in opposition to an application for a temporary restraining order might be treated as the "equivalent" of a motion for summary judgment and commenting that "Defendants, not surprisingly, have cited no authority for the proposition that arguments advanced in a party's memorandum of law may be considered the equivalent of motions properly filed and served"); Sheldon v. Anperex Elec. Corp., 52 F.R.D. 1, 7-9 (E.D.N.Y. 1971) (rejecting the defendant's argument that extensive discovery should be treated as the equivalent of an answer for purposes of Rule 41(a)(1)(i));compare Yosef v. Passamaquoddy Tribe, 876 F.2d 283, 286 (2d Cir. 1989) (concluding that where a motion to dismiss brought pursuant to Rule 12(b)(6), Fed.R.Civ.P., "ripens into one for summary judgment, the right to voluntary dismissal is extinguished at the time the motion is served"). As the Second Circuit has explained,
Obviously, Rule 41(a)(1)(i) dismissals will no longer be self-executing, as intended, if there is to be frequent judicial intervention for the purpose of determining whether the "equivalent" of an answer or a motion for summary judgment has been served or for the purpose of weighing whether the merits have been sufficiently considered by the court to warrant terminating the plaintiff's right to dismiss the proceedings.Thorp, 599 F.2d at 1176.
It is undisputed that Defendants have not filed either an answer or a motion for summary judgment denominated as such, although they suggest that their opposition papers to Medina's contempt motion could serve as the equivalent of an answer or motion for summary judgment. In light of the authorities discussed above, see, e.g., Santiago, 753 F.2d at 221-22;Thorp, 599 F.2d at 1173, no such equivalence may be found, and on a strict reading of Rule 41(a)(1)(i) voluntary dismissal would appear to be entirely appropriate.
Defendants urge, however, that the instant proceeding was not filed as a separate action which would necessitate an answer or motion for summary judgment since it was instituted by means of a civil contempt motion and order to show cause for temporary relief, and only assigned a separate docket number as the result of the terms of the November 2003 Order. According to Defendants, it follows that Medina is not entitled to dismiss the proceeding voluntarily as a matter of right under Rule 41(a)(1)(i), and may only dismiss the proceeding pursuant to the terms of Rule 41(a)(2), Fed.R.Civ.P.
Pursuant to Rule 41(a)(2), except as provided under subsection (1) of Rule 41(a), "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2). "Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." Id. "A district court may allow a plaintiff to dismiss an action [under Rule 41(a)(2)] if the defendant will not be prejudiced thereby."Correspondent Servs. Corp. v. First Equities Corp. of Florida, 338 F.3d 119, 126 (2d Cir. 2003). "Factors relevant to the consideration of a motion to dismiss without prejudice include the plaintiff's diligence in bringing the motion; any undue vexatiousness on plaintiff's part; the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; the duplicative expense of relitigation; and the adequacy of plaintiff's explanation for the need to dismiss." Zagano v. Fordham Univ., 900 F.2d 12, 14 (1990) (internal quotation marks omitted).
Defendants have posed a tantalizing problem with regard to the propriety or necessity of interposing an answer or a motion for summary judgment in a proceeding with the unusual procedural posture that this one enjoys. Even if the premise proposed by Defendants were adopted, however, it does not follow that dismissal under Rule 41(a)(2) — which, like Rule 41(a)(1)(i), applies to "action[s]" — would be available. Furthermore, even if Rule 41(a)(2) applied here, Defendants have not established that they would be prejudiced by dismissal of this proceeding or that dismissal without prejudice should be conditioned upon the grounds they identify.
Defendants' argument, taken to its logical extent, would suggest that Medina's notice of voluntary dismissal should be treated as an application for leave to withdraw the underlying motion for civil contempt. Leave to withdraw a motion without prejudice may be granted in the absence of a showing of prejudice to other parties, see, e.g., Harris v. Butler, 961 F. Supp. 61, 62 (S.D.N.Y. 1997), and for the reasons set forth below, Defendants have not established prejudice that would warrant setting conditions on the termination of this proceeding.
Specifically, Defendants' contention that they might be subject to a second lawsuit and duplicative expenses does not warrant dismissal with prejudice in view of Medina's representation that he has no intention to bring another action based on the facts involved in this matter. Moreover, "[t]he United States Supreme Court recognized long ago that starting a litigation all over again does not constitute legal prejudice." D'Alto v. Dahon Cal., Inc., 100 F.3d 281, 283 (2d Cir. 1996) (citing Jones v. Sec. Exch. Comm'n, 298 U.S. 1, 19 (1936) ("The general rule is settled for the federal tribunals that a plaintiff possesses the unqualified right to dismiss his complaint . . . unless some plain legal prejudice will result to the defendant other than the mere prospect of a second litigation upon the subject matter.")). To the extent that Defendants have expressed special concern with regard to costs incurred, Rule 41(d), Fed.R.Civ.P., provides Defendants substantial, and seemingly adequate, protection in this regard. It does not appear, in light of certain outstanding discovery issues, that this proceeding was on the eve of a hearing when Medina noticed voluntary dismissal, as Defendants claim, or that there is any evidence of undue vexatiousness on Medina's part. Finally, neither Medina's reasons for noticing the voluntary dismissal of this matter following his transfer on March 19, 2004, to a correctional facility which has assertedly met his requested accommodations nor his diligence in noticing dismissal after this transfer occurred provides any basis for dismissing this proceeding with prejudice or upon any of the conditions Defendants advocate.
Rule 41(d) provides that "[i]f a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order." Fed.R.Civ.P. 41(d).
As Medina has met the standard for voluntary dismissal under Rule 41(a)(1)(i), strictly construed, and Defendants have not established that dismissal with prejudice or upon the enumerated conditions would be appropriate even in the event that Rule 41(a)(2) applied, Medina's notice of voluntary dismissal shall be filed by the Court and this case closed.
It is so ordered.